OFCCP Week In Review: July 2022

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The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:
  • USDOJ Announced the Settlement of Claims That 16 Employers Posted Job Ads on College Recruiting Platforms Discriminating Against Non-U.S. Citizens: Attention ALL Recruiters, Especially College and University Recruitment Centers: USDOJ Has Put a Target On Your Backs
  • Enforcement of Biden Vaccine Mandate for Federal Employees Again Delayed
  • OFCCP Director & EEOC Chair Held A Joint Webinar With Four Outside Panelists Discussing Skills-Based Hiring
  • OFCCP Quietly Extended the AAP Verification Deadline Following Discovery of Faux Pas
  • SCOTUS Reigned In The Federal Agencies By Reminding Them They Must Identify “Clear Congressional Authorization” When Making Significant Decisions…Not So Much Trimming Rights As Trimming Presidential Power
  • VETS Announced Eight New Partners For Its Employment Navigator Pilot Program

Monday, June 27, 2022: USDOJ Announced the Settlement of Claims That 16 Employers Posted Job Ads on College Recruiting Platforms Discriminating Against Non-U.S. Citizens: Attention ALL Recruiters, Especially College and University Recruitment Centers: USDOJ Has Put a Target On Your Backs

Sixteen private employers agreed to pay a total of $832,944 in civil penalties to resolve claims that each company discriminated against non-U.S. citizens in hiring when they posted at least one job announcement excluding non-U.S. citizens on an online job recruitment platform the Georgia Institute of Technology (Georgia Tech) operated, the U.S. Department of Justice (DOJ) announced on Monday. Under the terms of their individual settlement agreements, the 16 employers will pay civil penalties in varying amounts, depending in part, on the number of allegedly unlawfully discriminatory advertisements they posted.

We Thought This Story Was Important Enough to Bring to Your Attention as a Good “Reminder”: The Immigration and Nationality Act (INA) generally prohibits employers and recruiters from limiting jobs based on citizenship or immigration status unless required by a statute, regulation, executive order, or government contract. “Regardless of whether colleges or universities run afoul of the INA in the way they operate their job recruitment platforms, employers themselves are liable if the advertisements they post on those platforms violate the INA,” the USDOJ cautioned in its press release.

In addition to the monetary penalties, the agreements provide that the private sector employers must require their recruiting staffs to undergo training on their obligations under the INA’s anti-discrimination provision. The offending private employers also agreed to refrain from including specific citizenship or immigration status designations in their campus job postings unless the restrictions were required by federal law. Additionally, they must ensure that their other recruiting practices and policies comply with the INA’s anti-discrimination provision. So, the takeaway here is that liability may bleed through your ”agent’s” posting of the illegal job ad and can attach to your company (too) for having initiated the unlawful ad in violation of the INA (yet another federal statute containing non-discrimination in employment prohibitions about which to be mindful).

A lawful permanent resident triggered USDOJ’s investigation via a discrimination complaint filed with the Department’s Civil Rights Division’s Immigrant and Employee Rights Section. That Complaint alleged that a company advertised a U.S.-citizens-only position on a Georgia Tech job recruitment platform. In its investigation, the USDOJ discovered a rash of other advertisements – that it deemed facially discriminatory – on Georgia Tech’s job recruiting platform as well as other platforms colleges and universities across the United States operated.

One private employer posted as many as 74 discriminatory advertisements on Georgia Tech’s job ad platform, while several of the employers posted discriminatory advertisements on other college and/or university platforms as well, the USDOJ asserted. These advertisements deterred qualified students from applying for jobs because of their citizenship status, and, in many instances, the citizenship status restrictions also blocked students from applying or even meeting with company recruiters, according to the Department.

“Unlawful hiring discrimination based on citizenship or immigration status is a widespread problem across higher education in the United States, putting many jobs out of reach of qualified college students and recent graduates,” noted Assistant Attorney General Kristen Clarke of the DOJ Civil Rights Division.

Links to the settlement agreements pertaining to each of the 16 employers are included at the bottom of the DOJ’s press release. On top of the investigations resolved with these 16 settlements, the USDOJ has active investigations into additional employers, it stated.

Monday, June 27, 2022: Enforcement of Biden Vaccine Mandate for Federal Employees Again Delayed

The Fifth Circuit U.S. Court of Appeals granted a petition for an en banc hearing of plaintiffs’ request to reinstate the nationwide injunction against enforcement of President Biden’s Executive Order 14043 requiring federal employee COVID-19 vaccination. The Order permitting a hearing on the claim before all judges of the Fifth Circuit again delays implementation of President Biden’s vaccination requirement for federal employees, most likely until at least mid-September 2022 when the full Circuit Court is first able to hear the case.

As readers may recall, a three-judge panel of the Fifth Circuit previously vacated the District Court order enjoining the federal employee vaccine mandate issued in Feds for Medical Freedom, et al. v. Biden, et al., Case No. 3:21-cv-356 (S.D. Tex.) (summarized in the WIR here). The three-judge panel’s ruling had paved the way for enforcement of the federal employee vaccine mandate until plaintiffs filed its petition for en banc hearing (which we discussed previously). With a hearing before the full Fifth Circuit now set for scheduling, the current status quo delaying the vaccine mandate for federal employees remains in effect.

Tuesday, June 28, 2022: OFCCP Director & EEOC Chair Held A Joint Webinar With Four Outside Panelists Discussing Skills-Based Hiring

“Many employers – the federal government included – are re-examining degree and hiring requirements to focus on an applicant’s abilities rather than where they learned them,” OFCCP Director Jenny R. Yang noted at the beginning of a Joint Webinar held with EEOC Chair Charlotte A. Burrows on Tuesday. Workers may acquire skills in a variety of ways aside from a formal degree program, including on the job, or through a worker’s own experience, Director Yang explained. Entitled, “Skills Based Hiring: Removing Barriers and Paving Pathways to an Inclusive Workforce,” the roundtable was the third in a continuing series of the Hiring Initiative to Reimagine Equity (HIRE) presentations, a press release noted.

Yang and Burrows both observed that eliminating unnecessary educational, or narrow prior experience, requirements for positions allows employers to select skilled workers from a diverse range of backgrounds. “[R]esetting [of] assumptions” is allowing employers to expand the pool of available talent, Burrows pointed out. Their comments flow from the continuing common observation that African Americans and Hispanics in the United States have not attained the same levels of post-high school education as Whites and (especially) Asian workers.

It is troubling, however, that the panelists did not address the almost complete absence of lawsuits, let alone a widespread number of them from the EEOC (and none exist from the OFCCP), finding that employer education and certification requirements have violated Title VII law by being unnecessary for job applicants to perform the degreed or certificated job in question. Rather, the suggestion from the OFCCP and the EEOC seems to be that federal contractors and employers should remove otherwise valid degree and certification requirements from their minimum qualification hiring standards. By contrast, the advice to employers we continue to hear in the private sector coast-to-coast for the fourth or fifth decade in a row is that employers should check the need and usefulness to the business of any degree or certification requirement (or any other qualification requirement).

It is well known within Human Resources circles that jobs periodically change and bear periodic reviews of their qualification requirements. It also appears to us that OFCCP Compliance Managers are especially aware of OFCCP’s two regulatory requirements that require covered federal Government contractors to at least annually review and adjust qualification requirements on a stated periodic schedule to ensure they are “job-related for the position in question and are consistent with business necessity.” Indeed, 25,000 federal contractor companies are this very month finishing a two-month “certification” process (via OFCCP’s Affirmative Action Program Verification Portal) that they are in compliance with these job qualification requirements, among many other Affirmative Action Program requirements, and have indeed reviewed their qualification requirements recently and on a periodic schedule. See 41 CFR Section 60-300.44(k)(c) [VEVRAA Rule] and 41 CFR Section 60-741.44(k)(c) (Section 503 Rule). Both OFCCP Rules read in parallel as follows (here is the disability version):

“(c) Physical and mental qualifications.

(1) The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified individuals with disabilities, they are job-related for the position in question and are consistent with business necessity.”

Note: OFCCP Executive Order 11246 Rules (pertaining to Minorities, Women, and Whites) do NOT have a parallel to the Section 503 and VEVRAA “periodic review of physical and mental qualifications.” Nonetheless, it is well known that most employers use the Section 503 and VEVRAA requirements to “make it a clean sweep” and periodically also review their job qualification requirements in the context of race, sex, and ethnicity while they are at it. It is noteworthy, too, that:

“OFCCP has found over the years that 99.9% of federal contractors have complied with its two regulatory requirements to periodically check job qualification requirements, including for unnecessary degree and certification requirements.”

Moreover, it is significant that OFCCP has NOT found any federal contractor to have unlawfully discriminated based on an unnecessary degree or certification requirement. Rather, OFCCP’s now fifty-year audit record is proof that federal contractors have been heeding the advice, suggestions, and “Helpful Hints from Heloise” the speakers at this Roundtable discussion put forward.

In contrast, however, one speaker discussed his conclusions and it appears that closer review is needed to understand how the federal agencies have missed what he has uniquely found: “Our extensive data analytics on skills and job mobility finds that over 70 million U.S. workers skilled through alternative routes such as community colleges, military service, partial college completion, workforce training programs, and on-the-job learning are undervalued in the job market,” reported Byron Auguste, CEO of Co-Founder of Opportunity@Work. Mr. Auguste used the acronym “STARs” for workers Skilled Through Alternative Routes. STARS are disproportionately Black, Hispanic, and rural, he said.

“Arbitrary barriers at companies are holding back STARs, and [employers] can help STARs overcome them,” Auguste stated. [NOTE: For context, the civilian labor force in the United States is about 165 million workers (rounding up). “70 Million” “undervalued” discriminatees limited by “artificial” barriers to employment would be over 42% of the current civilian U.S. labor force]. For the very jobs that employers are scrambling to fill, “there are millions of STARs knocking around the outside wanting to work for those companies in those roles” in addition to workers already employed at these companies, “and they could do those jobs,” Auguste pointed out.

“Our country is currently leaving great talent on the sidelines. Scaling a skills-first approach to our hiring and promoting will help us to be a great country for years to come,” according to OneTen CEO Maurice Jones. Seventy-nine percent of jobs paying $60,000 or more and seventy-one percent of jobs paying $40,000 or more require a four-year degree, according to Jones. However, among the workforce aged 25 and above, about 76 percent of Black workers and about 83 percent of Latinx workers, and about 66 percent of white workers do not yet have a four-year degree, according to Jones. Therefore, “[w]hat you effectively have is a credential that is literally a systemic barrier to entry to the middle class,” Jones noted, adding “we are literally keeping genius on the sideline because of a credential.”

“That is why we [at OneTen] chose to focus on [establishing and scaling] a skills-first culture,” he said, noting that it is smarter for businesses and communities.

“Creating pathways for more representative tech talent starts with employers who value hands-on experience and build systems to screen people in,” explained Laura Maristany, Vice President of External Affairs with Bitwise Industries. “We do this by powering technology solutions across sectors with underestimated talent proving that human-driven approaches are not only the right thing to do but are also profitable.” A skills-based approach is anchored in equity, she said, noting that Bitwise Industries pairs senior developers with apprentices on projects to help solve and build digital infrastructure in their communities.

CEOs should instruct their partners in HR that not every job description needs a degree requirement, recommended Emily M. Dickens, Chief of Staff and Head of Government Affairs at the Society for Human Resource Management. (SHRM). In April, SHRM issued a report highlighting the rise of alternative credentials that do not include a traditional college degree or professional license.

The panelists also described success stories involving the use of skills-based hiring and alternative credentials in talent acquisition.

Thursday, June 30, 2022: OFCCP Quietly Extended the AAP Verification Deadline Following Discovery of Faux Pas

As many Bloggers have trumpeted in recent weeks, last Thursday, June 30 was OFCCP’s self-proclaimed “deadline” for covered federal Government contractors and “subcontractors” to “certify” their compliance with OFCCP’s Affirmative Action Program requirements. Well, OFCCP CHANGED ITS CERTIFICATION “DEADLINE” LAST WEEK. V-E-R-Y quietly. Shush…do not tell anybody…unless they ask. OFCCP HAS NOW DELAYED THE CERTIFICATION DEADLINE PAST JUNE 30…INDEFINITELY. NO NEW CERTIFICATION DEADLINE, YET. News to follow.

What Happened? Well, two things happened.

OFCCP Week In Review Bonus Feature: OFCCP Quietly Extended the AAP Verification Deadline Following Discovery of Faux Pas

Thursday, June 30, 2022: SCOTUS Reigned In The Federal Agencies By Reminding Them They Must Identify “Clear Congressional Authorization” When Making Significant Decisions…Not So Much Trimming Rights As Trimming Presidential Power

On the final day of its current term, the Supreme Court of the United States issued a ruling that will immediately restrict the President’s power to exercise “Executive Fiat” to impose policies that Congress has not specifically delegated to him and his federal agency heads. SCOTUS used the case of West Virginia v EPA to reign in the Environmental Protection Agency’s (“EPA’s”) clean air emissions cap Rules and to warn federal agencies more generally in the process to be careful to always root their policy-making in federal statutes in which Congress clearly charged them to act. Now gone are the days the President and federal agency heads could simply invoke a general right to act in their areas of assigned responsibility and try to “lead the Congress” to come around to the President’s point of view.

The SCOTUS thus ended its term by continuing to restrict federal Executive Branch power to act in derogation of the rights the Constitution reposes in the state and federal territorial legislatures (that was the Dobbs decision reversing the Roe (abortion) decision returning broad powers back to the fifty state and federal territorial legislatures). And now in this EPA case, SCOTUS has shipped legal authority back to the U.S. Congress reminding and restricting federal Executive Branch agencies not to overstep their delegated boundaries. The Nation is watching in real time the balancing of the three branches of the federal Government the country’s Founders envisioned to not allow any one of the three major branches of the federal government to get too powerful relative to the other two branches. Advocates of a powerful centralized federal government were appalled by the West Virginia decision while advocates for a much smaller federal government charged just with health, safety, welfare, and national defense duties were elated at what they perceived to be a re-balancing of power away from a rampaging Executive Branch both Democrats and Republicans have been driving forward.

SCOTUS Seized on the “Major Question Doctrine” To “Hit The Brakes” on the President’s Runaway Exercise of Power

Here is the background: Section 111(d) of the Clean Air Act (codified in federal law as 42 U.S.C. §7411(d) and used interchangeably with “Section 111(d)” in the SCOTUS decision) granted the EPA the authority to devise emissions caps based on the generation-shifting approach the Agency took in its Clean Power Plan (CPP) Rule (that the Obama Administration issued in 2015). In the majority opinion, Chief Justice Roberts wrote that pursuant to “the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims” to make when it makes “decisions of vast economic and political significance.”

As we have previously written (see, Thursday, February 10, 2022: Eight States Bring Two Suits Seeking to Enjoin $15/Hour Minimum Wage for Employees of Federal Contractors & Subcontractors), the “Major Questions Doctrine” is an approach to statutory interpretation which precludes the Executive Branch from issuing Rules with deep economic and political significance where Congress did not expressly assign that power to The President.

Roberts went on to determine that the EPA’s effort to regulate greenhouse gases by making industry-wide changes violated the Major Questions Doctrine. Section 7411 of the Clean Air Act was “designed as a gap filler” and has rarely been used, Roberts noted, adding that Congress had previously rejected efforts to enact the kind of program that the EPA wanted to implement with its CPP Rule. As such, there was “little reason” to think that Congress gave the EPA the authority, pursuant to Section 7411, to issue its CPP Rule, and thereby, exercise “unprecedented power over American industry.” Although the provisions of the CPP Rule may be sensible policy, “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Roberts wrote.

Therefore, the U.S. Court of Appeals for the District of Columbia Circuit erred when it interpreted the Clean Air Act to give the EPA expansive power over carbon emissions, the Court concluded. The Biden Administration had planned to issue a new Rule on carbon emissions from power plants, rather than reinstating the Clean Power Plan Rule, which the Trump Administration repealed and replaced.

Justice Gorsuch wrote a concurring opinion, joined by Justice Alito, in which he further elaborated on what he saw as the merits of the “Major Questions Doctrine.”

The decision was yet another 6-3 ruling, with Justice Kagan writing a dissenting opinion joined by Justices Breyer and Sotomayor. Kagan vehemently disagreed with the majority’s conclusion that the EPA did not act under the authority that she asserted that Congress had in fact conveyed to EPA in Section 111 (aka 42 U.S.C. §7411) of the Clean Air Act. Rather, Kagan concluded that Congress had broadly authorized the EPA in Section 111 to select the “best system of emission reduction” for power plants. Here, the parties did not dispute that “generation shifting” was the best system to accomplish Congress’ generally stated goal of emission reduction. (“Generation shifting” is the shorthand term to describe shifting the generation of power from one source of power (perhaps from fossil fuels) to another power source (perhaps to solar sources). The majority’s reasoning “rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it” in Section 7411, Kagan wrote. “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems,” according to Kagan.

In a statement condemning the decision, President Biden stated that his Administration “will continue using lawful executive authority, including the EPA’s legally-upheld authorities, to keep our air clean, protect public health, and tackle the climate crisis. We will work with states and cities to pass and uphold laws that protect their citizens,” and that “will keep pushing for additional Congressional action.”

Thursday, June 30, 2022: VETS Announced Eight New Partners For Its Employment Navigator Pilot Program

Eight organizations have signed a Memorandum of Understanding with the Labor Department’s Veterans’ Employment and Training Service (VETS) to serve as partners to support the agency’s Employment Navigator and Partnership Pilot (ENPP), VETS announced on Thursday. These new partners are in addition to nine organizations added as partners back in September.

Here Is What Is In It For Employers

The (ENPP) provides one-on-one career assistance at no cost to transitioning service members and their spouses at 13 pilot sites worldwide. To aid their specific transition needs, ENPP Navigators connect individuals with government and non-government partner organizations for additional employment services, including the network of over 2,400 American Job Centers. This support complements the department’s Transition Assistance Program’s classroom instruction.

The newly-approved partners are Still Serving Veterans in Huntsville, Alabama; Lessons Learned for Vets Podcast in Glendale, Reveille Foundation in Goodyear, and Veterati Inc. in Phoenix, Arizona; Lucas Group in Atlanta, Georgia; Palmetto Goodwill in North Charleston, South Carolina; Oplign in Virginia Beach; and Operation Military Family in Edmond, Washington.

For more background, see our reports: Thursday, October 21, 2021: VETS Seeks Partners For Employment Navigator Pilot Program and Wednesday, September 22, 2021: Nine Organizations Identified in the Employment Navigator and Partnership Pilot to Assist Transitioning Service Members & Spouses.

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